Court Weighs Procedural Issue in Death Row Lawsuit

Condemned inmate Clarence E. Hill is challenging lethal injection as a cruel and unusual punishment. (Florida Department Of Corrections Via Associated Press)

Even members of the court sympathetic to Hill sought reassurances yesterday that he is not out to game the system, probing Doss on why he did not sue until shortly before Hill's Jan. 25 execution date.

"You did know there was a lethal-injection procedure for another prisoner, but you didn't challenge it then," said Justice Ruth Bader Ginsburg. "So why did you wait?"

Doss said he had no choice because the state refused to say precisely what would be done during the execution.

But Ginsburg was even tougher on Florida's assistant deputy attorney general, Carolyn M. Snurkowski, noting that nothing in the state's laws "binds" it to a promise of a humane execution.

When Snurkowski suggested that Hill's claim is weakened by the fact that he has not proposed an alternative method, Souter pounced: "Why does he have an obligation under the Eighth Amendment or any other ground to tell the state how to execute people?"

Snurkowski's inability to satisfy Souter irked Kennedy.

"You're not being forthcoming with your answer," he snapped.

Hill's failure to offer an alternative to Florida's lethal-injection protocol was key to the Bush administration's brief supporting Florida. But during the presentation of Kannon K. Shanmugam, an assistant to the solicitor general, Kennedy seconded Souter's point, observing that "if there are other methods that might be used, it seems to me the state has a minimum obligation to investigate those."

The case is Hill v. McDonough , No. 05-8794. A decision is expected by July.